No Habeas Corpus Against Order Of Judicial Remand Unless Ex-Facie Defective Or Illegal: Allahabad HC Imposes ₹50K Cost

While dismissing a habeas corpus petition, the Allahabad High Court imposed a cost of Rs. 50,000 as it noted that the petitioner had not challenged the remand order and concealed material facts regarding the rejection of bail by the Court below.

A bench comprising Justices Rahul Chaturvedi and Mohd. Azhar Husain Idrisi observed that the object of the writ of habeas corpus is to secure the release of a person who has been illegally restrained to protect his liberty.

Relying on the decision of the Supreme Court in Sanjay Dutt (2) Vs. State, the Court held

“The order of remand, which is a judicial act, as we perceive does not suffer from any infirmity. It is a well accepted principles that a writ of Habeas Corpus is not to be entertained when a person committed to the judicial custody or the police custody by a competent court by an order, which prima facie does not appear without jurisdiction or passed in absolutely mechanical manner or wholly illegal as has been stated in judgement in B.Ramchandra Rao(supra) & Kanu Sanyal(supra).”

Further, the Court observed

“The court is required to scrutinize the legality or otherwise of the order of detention which has been passed unless the court is satisfied the person has been committed to the jail custody by virtue of an order that suffer from vice of lack of jurisdiction or absolute illegality a habeas corpus writ petition cannot be granted. It is apposite to note that the investigation, as has been dealt with in a various authorities of the courts is neither an inquiry or a trial. It is within the exclusive domain of the police to investigate and is independent of any control by Magistrate. The sphere of activities is clear cut and well demarcated, thus we are of the considered opinion that the prayer sought by means of the present Habeas Corpus writ petition could not be granted in favour of the petitioner.”

The daughter of the informant allegedly left the house to earn money, however, she was dragged into the flesh trade by the petitioner along with some other people. She was drugged and forced into prostitution. The petitioner had also admitted to being guilty in his statement under Section 161 Cr.P.C. before the police. The petitioner has been charge-sheeted under Section 363 and Sections 5, 4 and 6 Immoral Traffic (Prevention) Act 1956 and Sections 4,17 and 7 of the POCSO Act.

Additional Government Advocate raised a primary objection as to the maintainability of the Habeas Corpus petition when the petitioner had the remedy to apply for bail before the High Court under Section 439 Cr.P.C. Further, it was alleged that the petitioner had concealed the material fact that his bail had already been rejected by the Court below.

In the petition, Petitioner had prayed that he may be released from jail and set free. It was contended that the petitioner’s incarceration in jail was a result of the procedural fallacy as he is not named in the FIR.

Further, it was argued that the way the police showed the petitioner’s alleged complicity is wholly untrustworthy. However, the Court noted that in the entire pleadings, the petitioner had not said anything regarding non-compliance of mandatory provisions and non-application of mind while passing the judicial remand order.

Relying on various judgments of the Supreme Court, the Court observed that the petitioner in the present case had not challenged the remand order in the pleadings or in the prayer. Thus, the writ of Habeas Corpus could not be issued.

“In the light of the above judgements, when there is a no prayer with regard to the alleged judicial remand is ex-facie defective or illegal by the aforesaid any of the vices, we cannot allow the instant Habeas Corpus writ petition in favour of the petitioner. As it is evident from the prayer, that only limited remedy is sought to the extent that the personal presence of the petitioner may be ordered and he is sat at liberty. There is no whisper with regard to the fact that the alleged remand by the Magistrate suffers from any of the vices enumerated above. Even assuming for the sake of argument that the said judicial remand order suffers from any of the vice mentioned above the apt remedy is challenge the said order first by invoking proper remedy for the same and then to approach this Court.”

Further, the Court observed that while invoking the extraordinary jurisdiction of the Court, the counsel must come with clean hands. During the two days of arguments, the counsel for the petitioner had made a passing reference to the bail rejection order of the court below, the Court held that the counsel was playing ‘hide and seek’ with the Court by concealing material facts.

Accordingly, the Court dismissed the Habeas Corpus petition with a cost of Rs. 50,000 to be paid by the petitioner to the Registrar General of the High Court who shall transfer the same to the High Court Legal Services Committee, Allahabad’. In case of default by the petitioner, the Court directed the said amount shall be recovered by the District Magistrate/Collector, Varanasi as arrears of land revenue.

“No laxity would be tolerated in executing the directions of the Court while collecting the ‘COST’ from the petitioner by the executive authority concerned within time bound period” added the Court.

Case Title:- Golu @ Arun Patel v. State Of U.P. And 4 Others

Case Citation: 2023 LiveLaw (AB) 314

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